SZMQK v Minister for Immigration - [2009] FMCA 262

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMQK v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 262

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal applied the correct test in relation to the criteria to be satisfied for being a refugee – whether the Refugee Review Tribunal considered all claims made by the applicant.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(1)(a); 91S; 474; pt.8 div.2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NACM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1554

Applicant:

SZMQK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2102 of 2008

Judgment of:

Emmett FM

Hearing date:

25 March 2009

Date of last submission:

25 March 2009

Delivered at:

Sydney

Delivered on:

31 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr B. Zipser

Counsel for the Respondent:

Ms R. Francois

Solicitors for the Respondent:

Ms K. Dunn, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2102 of 2008

SZMQK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 July 2008 and handed down the same day.
The applicant claims to be a citizen of the Ukraine and a member of the Christian Democratic Party (“the Applicant”).
The Applicant arrived in Australia on 27 January 2000 having departed legally from Borispol on a passport issued in his own name and a temporary business visa issued on 12 November 1999.
On 27 April 2000, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 12 May 2000, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 7 June 2000, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 20 December 2002, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The Applicant sought review of that decision in this Court and, on 7 June 2005, Federal Magistrate Driver remitted the matter to the Refugee Review Tribunal for determination according to law.
On 29 September 2005, the Refugee Review Tribunal, differently constituted, affirmed the decision of the Delegate not to grant a protection visa.
The Applicant sought judicial review of this decision of the Refugee Review Tribunal and, on 23 October 2007, Cowdroy J remitted the matter to the Refugee Review Tribunal for determination according to law.
On 29 July 2008, the Refugee Review Tribunal, again differently constituted, (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa. This is the decision currently under review.
On 17 August 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

The Applicant claimed to fear persecution in the Ukraine by reason of his political opinion arising from his membership of the Christian Democratic Party of the Ukraine (“the CDPU”) since 1997. He claimed to have “actively participated in the political life in the city of Ternopil”. The Applicant claimed that, during the presidential elections in 1999 in the Ukraine, he was threatened and attacked by political supporters of President Kuchma.

The Delegate’s decision

On 12 May 2000, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

The Tribunal’s review and decision

The Tribunal noted to the claims made by the Applicant before the previous two Refugee Review Tribunals.
On 4 July 2008, the Applicant gave evidence before the Tribunal in which he reformulated his previous claims. Those claims are summarised in the Tribunal’s decision record as follows:
“Putting the applicant’s reformulated claim as best the Tribunal can, it now seems that the applicant says that…if he returns to the Ukraine, he will suffer persecution arising from his involvement in the proceedings in connection with the 1996 theft of horses from his then de facto partner’s business. He puts this claim on the basis of his allegation that high ranking officials within the SBU and the police were involved in the crime, on the basis that he has been harmed by officials within those organisations in the past because of his political activities and on the basis that corruption and the infringement of citizens’ rights are such in Ukraine that the State will be unable to protect him.”
The Tribunal noted in its decision record that it discussed with the Applicant several issues arising from his earlier evidence, including:
a)The theft of the horses in 1996 and his involvement with his de facto partner’s business of training horses and why he believed he faced a threat of harm arising out of the incident.
b)The changed political regime in the Ukraine, the Applicant’s claims of corruption and fear of persecution in the current regime.
c)The Applicant’s de facto partner’s claimed refugee status in Italy, along with her adult daughter and the Applicant’s contact with them.
The Tribunal noted that it had before it the Department’s files relating to the Applicant, material referred to in the Delegate’s decision and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The Tribunal was not satisfied that the Applicant’s reformulated claims of persecution met the criteria for being a refugee. The Tribunal noted the Applicant’s own claim that the authorities conducted a criminal investigation into the theft and two persons were convicted and imprisoned for their involvement. The Tribunal did not accept that, even if the persons involved in the theft of the horses were government officials, they were acting on behalf of the authorities.
The Tribunal accepted that the Applicant was a member of the CDPU. However, having regard to independent country information, the Tribunal did not accept that this “would provide a reason for the infliction of harm under the present political environment in the Ukraine, even for someone who had a more significant role in the party than the applicant”. In the circumstances, the Tribunal did not accept that the Applicant’s political opinion constituted “the “essential and significant reason”, as required by s. 91R(1)(a) of the Act, for the persecution the Applicant claims to fear.” The Tribunal found that the “essential and significant reason” for any persecution would be the Applicant’s witnessing of the theft of horses and knowledge of those implicated in that theft.
The Tribunal had regard to the fact that 12 years had elapsed since the alleged events had occurred. The Tribunal noted in its decision record that:
“Even if the Tribunal were to accept, which it does not, that the applicant’s claimed fear of persecution was for a Convention reason at the time his protection visa application was made, the change in the political environment in Ukraine that has occurred since then makes the claim no longer tenable.”
The Tribunal found that the Applicant did not have a well-founded fear of persecution in the Ukraine for a Convention-related reason and, accordingly, affirmed the decision under review.

The proceeding before this Court

The Applicant was represented before this Court by Mr Zipser, of counsel.
On 13 March 2009, the Applicant filed an amended application and written submissions in support of his application for judicial review.
The Applicant confirmed that he relied on the grounds contained in the amended application filed on 13 March 2009.
The grounds of the amended application are as follows:
“1. The Tribunal found “that the applicant’s political opinion does not constitute the essential and significant reason, as required by s 91R(1)(a) of the Act, for the persecution the applicant claims to fear”. The Tribunal fell into jurisdictional error in making this finding.
2. The Tribunal found that “the change in the political environment in Ukraine that has occurred since [the time the applicant applied for a protection visa] makes the claim no longer tenable”. The Tribunal fell into jurisdictional error in making this finding.
3. The Tribunal failed to address one aspect of the applicant’s claims. Specifically, a question was whether the applicant would continue to be a political activist on his return to the Ukraine and, if so, whether he would suffer persecution as a result. The Tribunal’s failure to address this question gave rise to jurisdictional error.”

Ground 1

In support of Ground 1, Mr Zipser submitted that the Tribunal applied the wrong test in reaching its conclusion that “the essential and significant motivation [emphasis added] for any persecution feared is the fact that the applicant was a witness to the theft of the horses and asserts that he has knowledge of those implicated in the theft.”
Mr Zipser submitted that “motivation” is different from “reason” and that the test referred to in s.91R(1)(a) of the Act required the Tribunal to consider the essential and significant reason for the alleged persecution. The definitions of “motivation” and “reason” in the Macquarie Dictionary both refer to the notion of “cause”. Those definitions were read by the Court to Mr Zipser who made no further submission in response.
There is no difference sufficiently apparent to me in the use of those words that would suggest that, by using the word “motivation” instead of “reason”, the Tribunal fell into jurisdictional error. In my view to read the Tribunal’s reasons in that way would be reading the decision record with an eye keenly attuned to error. It is well-established that “looseness of language” or “unhappy phrasing” in the reasons of the Tribunal are not matters with which the Court should be concerned in considering whether or not the Tribunal’s decision is affected by jurisdictional error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
Mr Zipser submitted that the essential and significant motivational reason was because of the Applicant’s membership and involvement in the CDPU in the Ukraine. Mr Zipser submitted that it was not open to the Tribunal to find that the essential and significant “motivation” or “reason” feared was that the Applicant was a witness to the theft of horses and asserted that he had knowledge of those implicated in the theft. The Tribunal records its exchange with the Applicant on this issue in some detail as follows:
“The applicant said that, if he were to return to Ukraine, he would face harm from these people. They were in positions of influence and were capable of framing him for possession of drugs or other crimes. The Tribunal asked the applicant why these people would still have an interest in harming him after all this time. He said that he knew through friends that representatives of the authorities were still asking about his whereabouts. He was a witness to the theft and knew how it had been organized. Those involved knew that the applicant had political connections and connections to the press and that, if he returned to the country, he was in a position to give information to the press.”
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. The Applicant was directed to file and serve any evidence on which he intended to rely in support of his application, including a transcript of the Tribunal hearing. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and the exchanges it had with the Applicant about his evidence.
In submitting that the Applicant’s political opinion was the true cause of his fear of persecution if he were to return to the Ukraine, Mr Zipser referred the Court to NACM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1554 (“NACM”) at [50] where Madgwick J stated as follows:
“… although one cannot say that a real and substantial motivation of the persecutor is the claimant’s actual or imputed political opinion, it is enough if the claimant demonstrates that such political opinion is the true cause of his or her predicament, namely unwillingness to return because of the fear of persecution.”
In NACM, the applicant had threatened to expose general corruption as a result of which he claimed to fear persecution. Madgwick J in his obiter comments at [50], above, was positing the situation of imputed political opinion to the applicant by those persons in authority whose corruption the applicant may expose. That is not the situation in the proceeding before this Court. The Applicant in this case was not threatening to expose corruption of authority in any way related to his political opinion. Rather, the threat that his alleged persecutors may fear from the Applicant would be his exposure of their criminal conduct as horse thieves.
In my view, a fair reading of the Tribunal’s decision record makes clear that the Applicant feared harm from those who stole his partner’s horses because he was a witness to the crime and that he was in a position to give information to the press, albeit because of his political connections and connections to the press. It is clear that any harm that may befall the Applicant at the hands of the thieves had nothing to do with the reason why he may have political connections that put him in a position to give information to the press. Rather, in accordance with the Applicant’s own evidence, the Tribunal found that it was the fact that the Applicant may be in a position to give information to the press and was also witness to their criminal activity that may cause the horse thieves to seek to harm the Applicant if he were to return to the Ukraine.
In the circumstances, the Tribunal found that the essential and significant motivation for any persecution feared if he were to return to the Ukraine from the thieves was because the Applicant was a witness to the theft of horses and asserted that he had knowledge of those implicating the theft.
Further, the Tribunal also expressly dealt with the possibility as to whether the Applicant had a well-founded fear of persecution by reason of his stance against corruption and concluded that the Applicant did not have a well-founded fear on that basis. In reaching that conclusion, the Tribunal had regard to its finding that the essential and significant reason for any persecution feared was because the Applicant had been a witness to the theft of the horses. The Tribunal also had regard to independent country information that did not suggest the exposure of corruption would lead to persecution in Ukraine and noted that the information gave details of law enforcement bodies taking steps to prosecute civil servants charged with corruption.
In the circumstances, the Tribunal’s findings were open to it on the evidence before it and for the reasons it gave.
Accordingly, Ground 1 is rejected.

Ground 2

In support of Ground 2, Mr Zipser submitted that the Tribunal’s finding that the change in the political environment in the Ukraine since the Applicant lodged his application for a protection visa made the Applicant’s claim of a fear of persecution for a Convention reason no longer tenable. The Tribunal found that, even if the harm feared by the Applicant was Convention related, the regime change in the Ukraine meant that the Applicant’s fear was no longer well-founded. In relation to that issue the Tribunal said as follows:
“Even if the Tribunal were to accept, which it does not, that the applicant’s claimed fear of persecution was for a Convention reason at the time his protection visa application was made, the change in the political environment in Ukraine that has occurred since then makes the claim no longer tenable. The regime of Kuchma, of which on the applicant’s account he was a political opponent, has been replaced by the pro-Western regime of Yushchenko, who has sought to make the country more democratic. The Tribunal accepts that, as the independent country of origin information and the many media articles to which the applicant directed the Tribunal’s attention indicate, significant problems of corruption, restrictions on the press and infringement by authorities of citizens’ privacy rights continue to exist in Ukraine. However, when the circumstances are that the persons wielding political power whom the applicant opposed are no longer in power, the Tribunal cannot see how these governance deficiencies, however significant they may be, might impact adversely on the applicant for reasons of political opinion or any other Convention ground.”
Mr Zipser submitted that the Tribunal’s findings above were confined to the Applicant’s claim of a fear of President Kuchma, whereas the Applicant’s fears extended to the police and the SBU, being the secret police service.
I accept the submissions of counsel for the First Respondent, Ms Francois, that the police and the SBU are the instruments of the Kuchma regime which no longer exists.
In the circumstances the Tribunal’s findings as expressed above were open to it on the evidence and material before it and for the reasons it gave.
In any event, Mr Zipser conceded that in order for the Tribunal’s decision to be affected by jurisdictional error, the Applicant must succeed in both Grounds 1 and 2 of the application. The Tribunal’s findings above are alternative to its finding that any persecution feared by the Applicant from the horse thieves would not have a Convention nexus.

Having found that Ground 1 is not made out, it is unnecessary to consider Ground 2 any further.

Conclusion

A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 31 March 2009